P L D 1963 Azad J & K 49 (PLP)

MUHAMMAD SHARIF, J.‑This is an appeal against the orders of the learned Single Judge of this Court dated 2‑1‑63 and 7‑1‑63 by which respondent No. 1 was allowed to receive Rs. 84,632 out of the assets received by the Court and by which he was held entitled to share in the rate-able distribution of the assets received. The facts giving rise to this appeal are that Tariq Azim & Co. decree-holder appellant and several others includ ing Khan Muhammad Ismail obtained money decrees against Akbar Yusaf Masti Khan of Kashmir Forest Industries Ltd., Muzaffarabad from the Court of the learned Single Judge of this Court. Certain timber belonging to the judgment‑debtor were attached in execution of the decree obtained by Khan Muhammad Ismail and sold. Various decree‑holders applied for rateable distribution of the assets received by the Court. By order dated 7‑1‑63 the learned Single Judge decided that only 3 of the decree -holders i.e., Khan Muhammad Ismail Khan, Tariq Azim & Co. and Sh. Inam Ullah were entitled to the rate-able distribution. By order dated 2‑1‑63 Abdul Karim decree-holder‑respondent who is a transferee of the decree from Khan Muhammad Ismail Khan decree‑holder was allowed to withdraw Rs. 84,

632. By order dated 7‑1‑1963 it was held by the learned Single Judge that Abdul Karim transferee from Khan Muhammad Ismail was entitled to share in the rateable distribution. Assets were received by the execution Court and execution Court is the Court that passed the decree, between 4th and 9th April 1961. Khan Muhammad Ismail Khan transferred the decree by a written deed in favour of Abdul Karim the present respon dent on 16‑12‑1961. Both the transferor and the transferee made applications on the same date i.e. 16‑12‑61 to the execution Court praying that the name of the transferee be substituted and the execution proceedings continued. The execution Court passed an order on 6‑1‑62 that the name of Abdul Karim be substituted instead of Khan Muhammad Ismail Khan in the execution applica tion which was already pending. Tariq Azim & Co. decree -holder have come up in appeal against the order of the learned Single Judge allowing Abdul Karim to withdraw a certain portion of the assets and also against the order holding that tie was entitled to share in the rateable distribution. The learned counsel appearing on behalf of Abdul Karim decree‑holder‑respondent has raised a preliminary objection that the orders of the learned Single Judge against which the appeal has been filed were passed under section 73, C. P. C. and that no appeal is competent from the order passed under the subsection though it provides a special remedy under subsection (2) by way of a separate suit. The learned counsel for the appellant has replied that his appeal has been filed under subsection (3) of section 13 of the Azad Jammu & Kashmir Court and Laws Code of 1949, which contains the `letters‑patent' of this High Court. Section 13 is reproduced below:- (1) The High Court shall be a Court of appeal from the Civil Courts of the Azad Jammu & Kashmir State and from all other Courts subject to its superintendence. (2) The High Court shall also hear original suits of above the value of Rs. 10,000 such suits shall be heard by a Single Judge. (3) An appeal shall lie to the High Court from the judgment or order of one Judge in an original Civil suit. (4) * * * * * * * * * We enquired from Mr. Fateh Muhammad Aziz learned counsel for the appellant whether he had come up in appeal from an order or a "judgment" within the terms of subsection (3) of section 13 to which he replied that he had come up in appeal against an `order'. We pointed out to him that there is a Division Bench judgment of this Court in which it has been held that the word `order' used in subsection (3) section 13 shall mean such orders only as have been made appeal-able under Order XLIII Rule 1, upon which he shifted his stand and said that he was coming up in appeal against a judgment. Learned counsel for the appellant conceded that no appeal lay from an order passed wholly and simply under section 73, C. P. C. between the decree‑holders with regard to the rateable distribution of the assets but an order which decides a matter covered under section 47 (subsection 1) may although it be passed ostensibly under section 73, C. P. C to be a subject of appeal. The learned counsel cited A I R 1927 Lah. 100, A I R 1935 Lah. 302 and A I R 1939 Bom. 112 in support of his proposi tion. We have to see if the orders under appeal are covered by section 47, C. P. C. Cold-stream, J., held in A I R 1927 Lah. 100 that no appeal lies against an order passed wholly and simply under section 73 of the Code. But an order which does, as a fact, decide a matter covered by section 47(1) may although it be passed ostensibly under section 73 be the subject of appeal. The facts of this case were that Shiv Das held a decree against Feroze Din and that in the execution of the decree of Shiv Das and certain other decree‑holders the maximum attachable proportion of the Feroze Din's salary was attached and was to be rateably dis tributed. Balaki Mal & Sons also held two decrees against Feroze Din. Balaki Mal & Sons put in 2 applications in the prescribed form of execution of their decrees on various dates. The entry in column 10 of this form showing heading `the mode in which the assistance of the Court is required' was found defective. Balaki Mal & Sons applied for amendment of their execution application. The execution Court dismissed the execu tion application of Balaki Mal & Sons as not being in accordance with the rules (Order XXI, rule 11) and also dismissed their application for amendment. Balaki Mal & Sons appealed to the Additional District Judge, Lahore who accepted the appeal and setting aside the order of 1st December 1925 allowed rateable distribution prayed for. Against this order Shiv Das appealed before the High Court. Coldstream, J. remarked that had the order appealed against decided that Balaki Mal & Sons were not entitled to share rateably with other decree‑holders in the assets after attachment, the case would have been different. But the order did more than this for it dismissed Balaki Mal's application for execution in toto. A I R 1935 Lah. 302, was decided by Din Muhammad and Addison, JJ. and it was laid down in this ruling that though no appeal lies against an order passed wholly and simply under section 73, the order which decides a matter covered by section 47(1) may although it be passed ostensibly under section 73 be the subject of appeal. The facts of this case were that Bishan Das and another obtained a money decree against Tafazal Hussain Shah and others. In execution of their decree they attached certain houses belonging to the judgment debtors. Tulsi Shah also held a decree against the same judgment‑debtor in execution of which he got the same property attached. Both execution proceedings were consigned to the Record‑room and in both of them orders were passed that the attachment would continue. Sometime later Bishan Das applied that the attached property be sold and further asked for permission to bid for the sale. This permission was duly granted and eventually he himself purchased the property for Rs. 11,000 odd. Afterward Tulsi Shah appeared on the scene and prayed for a rateable distribution of the proceeds of this sale. The Subordinate Judge allowed this request and passed an order to the effect that Bishan Das would not get the sale certificate unless and until he paid to Tulsi Shah his rateable share. Bishan Das and Chuni Lal appealed to the High Court. The appeal came up before Agha Haider, J. who dismissed the appeal on the ground that no appeal or revision lay. Against this order an appeal was filed before a Division Bench. It may be mentioned here that not only an illegal condition was attached to the order not to issue the sale certificate of Bishan Das until be paid the rateable share of Tulsi Das but the Subordinate Judge in the summary execution issued a warrant against Bishan Das and realized Rs. 5,900 odd from him for payment to Tulsi Shah. The Division Bench (judgment was written by Din Muhammad, J.) decided that under Order XXI, rule 92, C. P. C., where no application is made under rules 89, 90 and 91 . . . the Court shall make an order affirming the sale and thereupon the sale shall become absolute. Further Order XXI, rule 94 enacts that where a sale of immove able property has become absolute the Court shall grant a certificate specifying the property sold and the name of the person who at the time of the sale is declared to be the purchaser. Their Lordships held that the order passed by the Subordinate Judge had completely ignored the provisions of law inasmuch as it had imposed an onerous condition on the auction‑purchaser which the law did not contemplate. Therefore, their Lordships were of the opinion that the case came under section 47 and appeal was competent. The facts of A I R 1939 Bom. 112 were that plaintiff who had obtained an exparte decree against the defendant applied for execution of the decree. Defendant's application for stay of execution was granted on condition of his furnishing security surety bond was thereupon executed by which the surety under took to pay a certain sum in case plaintiff suffered on account of the execution being stayed. Subsequently the ex parte decree was set aside but a decree inter‑partes was passed. Plaintiff applied for execution of this new decree. Surety paid the agreed amount in Court. Other decree‑holders who had previously obtained decrees against the same judgment‑debtor applied for rateable distribution of the amount so paid by the surety, which was allowed. On appeal it was held by Beaumont, C. J. and Sen, J. that other creditors were not entitled to rateable dis tribution because the Court having received the amount in terms to be applied towards the payment of the plaintiff's debt, the amount could not be applied towards payment of anybody else's debt as well as the plaintiff's debt. It was further held that there an order for rateable distribution affects not only the creditors inter se but the surety to a considerable extent and the judgment- debtor to a lesser extent, an appeal lies from such order under section 47 read with section

145. Their Lordships were of the opinion that the original decree‑holders were being very seriously prejudiced by stay of their decree. If the execution had not been stayed the decree could have been executed in 1930 and then there would have been no question of rateable distribution since other decree‑holders had come in very late. Their Lordships also remarked that it was the breach of trust for the execution Court to allow funds which were received for specific purposes for the payment of the plaintiff's decree to be allowed to be rateably distributed between the other decree‑holders also. Their Lordships, no doubt, decided that an appeal lay under section 47 read with section 145, C. P. C. but they were not so very sure of the competency of the appeal as appears from their remarks in the closing para. of the judgment "but even if an appeal does not lie, we could deal with the matter in revision under section 115 on the ground that the lower Courts have committed material irregularity in not carrying out the arrangement which was entered into". We are in perfect agreement with the broad proposition of law laid down in the authorities cited by the learned counsel for the appellant. We agree that where the order though ostensibly made under section 73, C. P. C. is yet covered by section 47, the appeal is competent. The cases cited by the learned counsel are distinguishable and are not all fours with the facts of the present case before us. In A I R 1927 Lah. 100, the execution of application of Balaki Mal & Sons had been dismissed and it was held that this was a matter between the decree‑holders and the judgment‑debtors within the meaning of section 47, C. P. C. In the present case before us the execution application of non‑decree‑holder has been dismissed. In A I R 1935 Lah. 302 clear provision of Order XXI, rules 92 and 94 had been ignored and execution Court had refused to issue a sale certificate to the auction‑purchaser. This was held to be a matter falling under section 47, C. P. C. The facts of the present case before us are not the same and are quite different. Similarly in A I R 1939 Bom. 112 the facts were that in the opinion of their Lordships the Subordinate Court had committee] a breach of trust in allowing the funds meant for specific purpose to be used towards a different purpose i.e., a rateable distribution. No doubt, their Lordships held that the appeal was competent but as appears from the remarks in the closing para. they were not so very sure of the competency of the appeal, therefore they held that even if no appeal lies they were prepared to exercise their powers of revision. It should be clearly understood that in this Bombay case the proceedings that had come up before the High Court were the proceedings of a Subordinate Court and they could interfere under section 115, C. P. C. but in the present case before us there is a difference inasmuch as the order under appeal was passed by a Court not subordinate to the High Court but by a learned Single Judge of the High Court who was trying the civil suit on the original side and had passed the order in the course of execution proceedings. No revision is competent against the proceedings of a Judge of the High Court. Another point which requires determination is what is meant by the word `judgment' used in the Azad Jammu & Kashmir Courts & Laws Code. `Judgment' has not been defined as used in section 13 or as used in `Letters‑patent' of various High Courts. Section 2(9), C. P. C. defines `judgment' to mean the statement given by the Judge of the ground of a decree or an order. According to this definition all orders would be judgments because the Judge has to give grounds of the order also and the statement of the ground of the order would also amount to a judgment. If this definition were in the mind of the Legislatures they would not have used the word `order' in section

13. The use of 2 words `judgment' and `order' are meant to differentiate between the `judgment' and `order'. In Bhogi Lal v. The Dekore Temple Committee (A I R1925 PC 155), their Lordships of the Privy Council observed that the term `judgment' in the Letters‑patent meant in civil cases a `decree' and not a `judgment' in the ordinary sense. Similarly the Nagpur High Court has held following the decision' of the Privy Council in Bhogi Lal's case that `judgment' means in civil cases decree and not `judgment' in ordinary sense A I R 1948 Nag.

85. The `order' would, no doubt, amount to a decree if it can be held to be covered by section 41, C. P. C. But we are of the opinion that the order under appeal is not covered by section 47 since it is not a question arising between the parties in the suit. The only question involved in this appeal is that part of the assets have been paid to a person not entitled to receive the same. It is the contention of the learned counsel for the appellant that Abdul Karim respondent the transferee from Khan Muhammad Ismail decree‑holder is not entitled to share in the rateable distribution of the assets received by the Court as a result of the sale of the timber belonging to the judgment‑debtor in the execution proceedings initiated by Khan Muhammad Ismail Khan inasmuch as Abdul Karim the transferee' had made no application for the execution of the decree within the meaning of Order XXI, rule 16, C. P. C. and even if he can be said to have made such an application it should be held that he had made such application on 16‑12‑61 and the assets have been received much earlier i.e., in the month of April 1961, Subsection (2) of section 73 is very clear on the point and is reproduced below :‑ "Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets." It is clear from the plain language of this subsection that Tariq Azim & Co. who allege that they are entitled to the assets liable to be rateably distributed, and that Abdul Karim is not so entitled and has received a portion of the assets. can bring his suit against Abdul Karim to compel him to refund the assets that he has received. Our considered opinion is that the orders of the learned Single Judge do not fall within the terms of section 47, subsection (1), C. P. C. The learned counsel no doubt tried to argue that if Abdul Karim is held disentitled to the rateable distribution of the assets, the judgment‑debtor will still be left with some money after full satisfaction of the decrees of Tariq Azim & Co. and Sh. Inam Ullah decree‑holders who have been allowed to share in the rateable distribution. Even if some thing is left after satisfying the decrees of Tariq Azim & Co. and Sh. Inam Ullah, there are a host of decree‑holders who would get attached whatever is left and the poor judgment‑debtor who does not care even to appear and defend suits or execution proceedings brought against him, would get nothing. It is too far‑fetched to say that the matter decided by the learned Single Judge is between the decree‑holder and the judgment‑debtor. We hold that the matter is purely between two sets of decree‑holders and the remedy of the appellant is not by way of appeal but by a suit as provided in subsection (2) of section 73, C. P. C. We accordingly uphold the preliminary objection and dismiss the appeal with costs. Lengthy arguments were addressed on the merits of the appeal but since we have upheld the preliminary objection we need not go into the question whether Abdul Karim the transferee had made or had not made an application for execution of his decree and whether he could continue or could not continue the execution proceedings under section 146, C. P. C. We had heard the parties on merits also because at the time of arguments we had not been able to make up our mind on the preliminary objection. K. B. A. Appeal dismissed.